Supreme Court of the Republic of Turkey
7. Criminal Chamber
Basis: 2014/22890
Decision: 2016/8644
Decision Date: 22.06.2016
CRIME OF OBJECTING THE LAW NUMBER 4733 – ATTORNEY FEE WAS IMPLEMENTED IN FIELD OF THE CUSTOMS ADMINISTRATION, WHICH DECIDED TO PARTICIPATE IN THE CASE, WHEN HE WAS NOT INJURED BY THE CRIME – APPROVAL OF THE PROVISION
SUMMARY: According to the nature of the crime in the judgment established for the accused who was charged with the crime of violating the law numbered 4733, although the attorney’s fee was ruled in favor of the customs administration, which was decided to participate in the case even though he was not harmed by the crime, it was decided to correct the verdict and uphold it.
Litigation and Decision: The judgment rendered by the local court is appealed; After the file was read according to the nature of the application, the type of punishment, its duration and the date of the crime, the necessity was discussed and considered on behalf of the Turkish Nation;
I- According to the nature of the crime, the decision of the customs administration, which has not been directly harmed by the crime, to participate in the public case will not give the right to appeal, so the appeal request of the customs administration representative is in accordance with the article 317 of the CMUK numbered 1412, which is in force in accordance with the article 8/1 of the Law No. 5320. denial,
II- In the examination of the defendant’s appeals;
Although other appeal objections are not valid,
1- Failure to consider that the deprivation of rights regulated in subparagraph (c) of paragraph 1 of Article 53 of the TPC should also be sentenced for the accused, who is sentenced to imprisonment for the crime he has deliberately committed,
2- Instead of confiscating all smuggled cigarettes, which are the subject of the lawsuit, without a banderol, confiscation of the samples registered in the judicial custody, by showing the clause of the article incorrectly,
3- Depending on the nature of the offense committed, an attorney’s fee is awarded in favor of the customs administration, which is decided to participate in the case even though it has not been harmed by the crime,
Conclusion: As the defendant’s objections to appeal are deemed unlawful and appropriate for this reason and this issue does not require a retrial, in accordance with Article 322 of the Criminal Procedure Law No. 1412, which is in force in accordance with Article 8/1 of the Law No. 5320;
1-Removal of the paragraph regarding the implementation of Article 53 of the TCK, instead of the Constitutional Court’s decision dated 08.10.2015 and 2014/140 E. – 2015/85 K. Considering the decision numbered and in accordance with the conditions in paragraphs 2 and 3 of Article 53 of the Turkish Penal Code, subparagraphs (a), (b), (c), (d) and (e) of the first paragraph of the aforementioned law article, Writing the phrase ”
2-Removal of the clause regarding the confiscation of cigarettes registered in judicial custody, instead of “Turkish Penal Code 54/1. to confiscate smuggled cigarettes without banderol, which is the subject of the case,
3- It was unanimously decided on 22.06.2016 that the clause regarding the provision of attorney’s fee in favor of the customs administration should be removed and the provision should be corrected and approved by leaving the other parts unchanged.
